Back
2014 MarsdenLR 1671
FEDERAL COURT PUTRAJAYA
MAXLAND SDN BHD – Appellant
Versus
TIMATCH SDN BHD – Respondent
[Civil Appeal No: 02(i)-88-11-2012 (S)]
The judgment in default was held invalid due to the plaintiff's failure to serve a statement of claim as mandated by procedural rules before entering judgment.
Headnote:(A) Rules of the High Court 1980 - Order 13 rules 2 and 6(1) - Interpretation Act 1967 - Judgment in default of appearance - Plaintiff's claim included for a general relief and restraining order; court ruled the plaintiff must serve a statement of claim prior to obtaining a JID - The defendant's appearance was deemed late based on the service presumption. The court confirmed on the facts that the plaintiff's JID was entered irregularly for not complying with service requirements, necessitating the setting aside of judgment. (Paras 22, 25, 30, 33)
(B) Procedural Irregularities - Court cannot validate absent compliance with proper processes; failure to serve the statement of claim before entering judgment leads to invalidity. (Paras 24, 33)
Facts of the case:
The appeal concerns the defendant's application to set aside a JID issued after the plaintiff's writ was deemed served. The appellant claimed the court erred by determining their appearance was untimely despite arguments that they received the writ later. (Paras 5-8, 19)
Findings of Court:
The court held that the JID was irregular as the plaintiff failed to serve a statement of claim and entered judgment prematurely against the provisions of the applicable rules. (Paras 25-30)
Issues: The court examined whether failure to serve a statement of claim renders the judgment in default irregular and if the JID could be set aside as a matter of right. (Paras 1-2, 33)
Ratio Decidendi: The court determined that the plaintiff's failure to meet the statutory requirements invalidated the default judgment, emphasizing the necessity of compliance with procedural rules to maintain the integrity of judicial proceedings. (Paras 22-25)
Result: The appeal is allowed, and the judgment in default is set aside.
| Table of Content |
|---|
| 1. overview of the appeal process. (Para 1 , 1 , 2) |
| 2. detailed factual background of the case. (Para 3 , 4 , 5 , 6 , 7 , 8) |
| 3. findings and affirmations by the high court. (Para 9 , 10) |
| 4. defendant's arguments regarding procedural issues. (Para 11 , 12 , 13 , 14 , 16 , 17) |
| 5. court's assessment of the defendant's claims. (Para 19) |
[1] This is an appeal by the appellant against the whole decision of the Court of Appeal in dismissing the appellant's appeal against the decision of the High Court at Sandakan. The High Court had dismissed the appellant's application to set aside the certificate of non-appearance dated 16 February 2011 and the judgment in default of appearance ("JID") entered by the respondent against the appellant and for the appellant to be granted leave to file and serve its statement of defence within two weeks from the date that the statement of claim is served on them and for a further order that the hearing for assessment of damages be set aside. The appellant was the defendant and the respondent was the plaintiff before the High Court. For convenience the parties will be referred to as they were before the High Court.
Leave To Appeal
[2] This Court granted leave to the defendant to appeal against the decision of the Court of Appeal on the following two questions of law:
(1) Where a writ is indorsed generally with claims for damages and restraining order, whether it is mandatory for the plaintiff to serve a statement of claim on the defendant and to proceed with the action as if the defendant had entered an appearance under O 13 r 6(1) of the Rules of the High 1980 ("RHC 1980").
(2) If the answer is in the affirmative, whether a judgment in default of appearance obtained before the statement of claim is served is therefore irregular and may be set aside ex debito justitiae.
Background Facts
[3] The sequence of dates is relevant and of importance in this appeal. The relevant background facts in accordance with the sequence of dates are these:
[4] On 30 December 2010 the plaintiff took out a generally indorsed writ against the defendant claiming for damages and a restraining Order (injunction) arising out of the defendant's wrongful action in trespass. It was alleged that the defendant had intentionally or negligently injured the raw water transmission pipeline and valve chamber along Jalan Ulu Sibuga in the District of Sandakan which was used and maintained by the plaintiff for the supply of water to its treatment plant. On 29 January 2011 the plaintiff posted the writ on Saturday at Kota Kinabalu to the defendant's address in Sandakan. The dates, 3 February 2011 and 4 February 2011 were public holidays in view of the Chinese New Year Festival.
[5] The defendant claimed that on 8 February 2011 after the Chinese New Year Festival on or about Tuesday, the defendant received by mail the said writ. On 9 February 2011 the defendant by a letter dated 9 February 2011 instructed the defendant's solicitors to defend the action herein. On 16 February 2011 at about 2.32pm the defendant by a Memorandum of Appearance entered appearance at the High Court Registry at Sandakan. A copy of the same was also served on the plaintiff's solicitors by way of fax and courier.
[6] On 16 February 2011 at about 5.12pm the certificate of non- appearance was issued by the plaintiff and pursuant to the certificate of non-appearance the said JID was entered. On 28 February 2011 the defendant received by mail a letter dated 22 February 2011 from Messrs Alex Pang & Co., the plaintiff's solicitors enclosing a copy of the said JID dated 16 February 2011. On 1 March 2011 the defendant's solicitors by a letter dated 1 March 2011 applied to conduct a file search at the Registry of the High Court at Sandakan.
[7] On 3 March 2011 the defendant's solicitors received a notice of hearing dated 2 March 2011 from the High Court at Sandakan stating that the matter herein had been set down for assessment of damages on 12 and 13 April 2011. Upon receivin
